Estate of Bard v. City of Vineland

United States District Court, D. New Jersey

July 20, 2018

THE ESTATE OF RICHARD BARD and DANA GERMAN-BUNTON, as administrator ad-prosequendum of THE ESTATE OF RICHARD BARD, Plaintiffs,v.THE CITY OF VINELAND, CHIEF RUDY BEU, FORMER CHIEF TIMOTHY CODISPOTI, and JOHN DOE POLICE OFFICERS 1-10, Defendants.

This
matter concerns claims by Plaintiff, Dana German-Bunton, the
mother of Richard Bard, the decedent, arising out of the
shooting death of Bard by Defendant City of Vineland
(“City”) police officers. Plaintiff claims: a)
that the police officers violated Bard's right to be free
from the use of excessive force; b) the City and the police
chiefs maintained a policy or custom that fostered the police
officers' use of excessive force; and c) the City and
police chiefs failed to properly train their officer on the
appropriate use of force, all in violation of the Fourth
Amendment of the U.S. Constitution and New Jersey Civil
Rights Act, N.J.S.A. 10:6- 2(c). Plaintiff has also lodged
claims for wrongful death and negligence under state law
against Defendants.[1]

Presently
before the Court is the motion of the City of Vineland, its
current police chief, Rudy Beu, and its former police chief,
Timothy Codispoti, to dismiss Plaintiff's claims. This is
Defendants' second motion to dismiss. Previously, the
Court granted Defendants' first motion to dismiss because
Plaintiff's complaint failed to plead facts with the
level of specificity required by Federal Rule of Civil
Procedure Rule 8. See Ashcroft v. Iqbal, 556 U.S.
662 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544
(2007) (hereinafter “Twombly/Iqbal”).
(Docket No. 18.) The Court found that Plaintiff's
allegations were simply conclusory restatements of the legal
elements of unconstitutional policy, custom, and failure to
train claims under Monell v. Dept. of Social Services of
City of New York, 436 U.S. 658, 694 (1978), without any
facts to show how the City of Vineland became aware of a
pattern and culture of unconstitutional behavior by Vineland
officers, when and under what circumstances such events
occurred, how Vineland police chiefs failed to properly train
its officers, or the nature of the policy or custom that
fostered the use of excessive force by the officers.
(Id. at 11.) The lack of any factual support to
Plaintiff's claims against the City and its police chiefs
also resulted in the dismissal of Plaintiff's state law
claims. (Id. at 16-17.)

The
Court afforded Plaintiff thirty days to file an amended
complaint against those Defendants if she could do so in
compliance with Federal Civil Procedure Rules 8 and 11 and
the standards set forth by Twombly and
Iqbal. (Id. at 18.) The Court permitted
Plaintiff's civil rights violation claims against the
John Doe police officers to proceed. (Id.)

Plaintiff
timely filed an amended complaint. (Docket No. 22.)
Plaintiff's amended complaint still does not identify the
John Doe police offices, and she reasserts all the claims
against the Vineland, Beu, and Codispoti that the Court had
dismissed. Shortly thereafter, Defendants moved to dismiss
Plaintiff's claims against them, arguing that the minor
additions to her allegations do not cure the deficiencies in
her pleading. Defendants also argue that Plaintiff's
claims should be dismissed with prejudice because she has
already been afforded two opportunities to state cognizable
claims against them, and her continued failure to do so
demonstrates that no valid claims against them exist.

In
opposition, Plaintiff points to the two main additions to her
complaint that she argues satisfy Rule 8 and
Twombly/Iqbal. Plaintiff has added that Bard was
targeted by the police for the robbery that was the basis for
their encounter with him because he is African American,
despite the fact that the robbery victim identified the
suspect as being Puerto Rican. Plaintiff claims that the City
of Vineland, through its police chiefs, maintained a policy
of baselessly targeting African Americans in criminal
investigations. Plaintiff also adds to her complaint that
Defendants maintained a policy of allowing officers to use
excessive force by having a “whatever means
necessary” approach to stopping criminal suspects.

Plaintiff's
additions to her complaint do not provide enough factual
underpinning to rise above the level of simply pleading the
legal bases for liability under
Monell.[2] That the officers pursued Bard, an African
American, as the perpetrator of a robbery when the victim
identified a person of Puerto Rican descent does not suggest,
standing alone, a plausible claim that Vineland police chiefs
deliberately fostered a policy of inappropriately targeting
African Americans as a group. In the same vein, that the
police officers shot Bard from behind while he was fleeing,
and that such use of force constituted a “whatever
means necessary” approach to apprehending him, does not
imply that the Vineland police chiefs maintained an
environment, through a custom, policy, or lack of training,
of condoning the use of excessive force.

It is
well established law that a policy or custom sufficient to
maintain a § 1983 Monell claim ordinarily
cannot be inferred from one single instance of misconduct.
Delbridge v. Whitaker, 2010 WL 1904456, at *5
(D.N.J. 2010) (citing Losch v. Borough of Parkesburg,
PA, 736 F.2d 903, 911 (3d Cir. 1984) (“A policy
cannot ordinarily be inferred from a single instance of
illegality such as a first arrest without probable
cause.”)); Oklahoma City v. Tuttle, 471 U.S.
808, 823-24 (1985) (“[A] single incident of
unconstitutional activity is not sufficient to impose
liability under Monell, unless proof of the incident
includes proof that it was caused by an existing,
unconstitutional municipal policy, which policy can be
attributed to a municipal policymaker.”).

Indeed,
the terms “policy” and “custom”
themselves connote an ongoing practice or course of conduct
that has inflicted harm on more than one occasion, and will
continue to inflict harm if that practice or course of
conduct is not curbed or corrected. See, e.g.,
Gallashaw v. City of Philadelphia, 774 F.Supp.2d
713, 718 (E.D. Pa. 2011) (finding that the plaintiff's
claim that a policy or custom causing constitutional rights
violations can be inferred from a single incident fell short,
and noting that the plaintiff herself referenced several
cases requiring proof of “persistent, ”
“widespread, ” or “repeated”
constitutional violations before an inference of policy or
custom is appropriate).[3]

Moreover,
a viable § 1983 claim must show a causal link between
the alleged policy and custom and the alleged injury. Even
where there is proof of the existence of an unlawful policy
or custom, a plaintiff bears the additional burden of proving
that the municipal practice was the proximate cause of the
injuries suffered. Bielevicz v. Dubinon, 915 F.2d
845, 850 (3d Cir. 1990). “To establish the necessary
causation, a plaintiff must demonstrate a ‘plausible
nexus' or ‘affirmative link' between the
municipality's custom and the specific deprivation of
constitutional rights at issue.” Id.

Plaintiff
has not pleaded facts to suggest that a policy or custom of
targeting African Americans or permitting “whatever it
takes necessary” force caused the individual officers
to pursue and shoot Bard. See Thomas v. Cumberland
County, 749 F.3d 217, 222 (3d Cir. 2014) (providing that
liability may be imposed against a municipality under
Monell “when the policy or custom itself
violates the Constitution or when the policy or custom, while
not unconstitutional itself, is the ‘moving force'
behind the constitutional tort of one of its
employees”); Benhaim v. Borough of Highland
Park, 2015 WL 105794, at *7 (D.N.J. 2015) (noting that
liability does not “arise on the tautological grounds
that the injury in question would not have occurred if
officers had been trained to avoid that particular injury;
such a claim ‘could be made about almost any encounter
resulting in injury.'” (quoting Canton,
489 U.S. at 391)); Harley v. City of New Jersey
City, 2017 WL 2779466, at *8 n.9 (D.N.J. 2017)
(“Regardless of the amount of training provided or the
number of policies implemented, a rogue employee can always
type something inappropriate on an employer's computer.
If this occurs, it does not mean (nor can it be inferred)
that the employer has a formal policy condoning such
behavior.”); Culver v. Wardlow, 2012 WL
686016, at *1 (D.N.J. 2012) (granting the municipality's
motion to dismiss the plaintiff's Monell claims
where the city council member made four telephone calls to
the New Jersey State Police in which she falsely reported
that a black male with dreadlocks - the plaintiff - was
causing a disturbance at the borough hall on election day and
not informing the police that the plaintiff was a candidate
permitted to be there, finding that the council member made
no official policy, “but rather made a rogue decision
when she allegedly called the police to subvert a political
adversary, ” and rejecting the plaintiff's argument
that the council member's status automatically converted
her actions into a municipal policy because her actions did
not constitute “a final proclamation, policy or edict,
” and that the plaintiff did not allege any widespread
custom of incumbents lying to the police to subvert political
adversaries, but rather, the city council member specifically
acted to prevent the plaintiff from interacting with voters
on election day); cf. Merman v. City of Camden, 824
F.Supp.2d 581, 593 (D.N.J. 2010) (permitting a
plaintiff's Monell claim to proceed to a jury
because, “[t]aken as a whole, the civilian complaints
and Internal Affairs' investigations and resolutions show
that plaintiff's allegations are consistent with prior
allegations and that when investigating civilian complaints,
Internal Affairs employs processes and reasoning that may, in
the eyes of a reasonable fact-finder, insulate officers from
liability”); Castellani v. City of Atlantic
City, 2017 WL 3112820, at *20 (D.N.J. 2017) (denying
summary judgment on the plaintiff's Monell claim
because plaintiff alleged, and ultimately presented evidence,
that Atlantic City mislabeled civilian complaints alleging
criminal conduct which provided a “plausible
nexus” or “affirmative link” between the
City's custom and the plaintiff's injuries,
“because if officers are consistently reprimanded for
minor administrative violations (or not reprimanded at all)
instead of disciplined for excessive force or other potential
criminal violations, then a heightened inclination of police
officers to use excessive force would be a highly predictable
consequence of the City's inaction” (citations and
quotations omitted)).

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;In
short, to present a valid Monell claim, &ldquo;[a]
plaintiff must identify the challenged policy, attribute it
to the [municipality] itself, and show a causal link between
execution of the policy and the injury suffered.&rdquo;
Losch, 736 F.2d at 910. Plaintiff&#39;s amended
complaint fails to plead facts to suggest that the police
chiefs, as policymakers for the City of Vineland, made a
deliberate choice to promulgate, implement, or maintain the
alleged policies and customs and training
failures.[4]Plaintiff's amended complaint also
fails to provide facts to suggest that any such policies,
customs, or training failures proximately caused the
officers' actions ...

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